Petition — Spencer v. Ayoub

October Term, 1976.

—WG-1529

No.

H. N. SPENCER, M.D.,

0.

HANNA M. AYOUB and MARGARET AYOUB, His Wife,

Respondents.

Petitioner,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT AND APPENDIX.

‘

Wiru1aM F. SuL.ivan, Jp.,

Barton L. Post,

Post & ScHELL, P. A.,

Counsel for Petitioner,

H. N. Spencer, M.D,

2nd Floor,

Two Penn Center Plaza,

Philadelphia, Pennsylvania. 19102

international Printing Co., 711 So, 60th St., Phile., Pe. 19143 — Tel. (215) 727-6711

INDEX.

Conagnass Gp QCopcntnnet GROW oo ccccccccccseseccccsecscss

IED ok kcntcccddaddccadaccbonscncaseanbanedsees

QUESTIONS PRESENTED FOR REVIEW ...........0ceeeeecees

FEDERAL RULE oF Civit ProcepuRE INVOLVED .............

ey I Oe io cccdidcccnedcdtbasdedenassuacss

CE ecncdksesviiektssnctiiindatseeiadiaceilaaaoe

I. The Failure of the Appellate Court to Consider the

Mandate of Rule 51 of the Federal Rules of Civil Pro-

cedure That Alleged Deficiencies in Instructions May

Not Be Assigned as Error Unless Objected to Below

on Grounds Distinctly Stated and Its Failure to Con-

sider or Determine the Circumstances Under Which

That Mandate May Be Disregarded Present Issues of

Great Importance to the Administration of Justice in

the Federal Courts Which Have Never Been Consid-

ered or Ruled Upon by This Court and to Which the

Courts of the Various Circuits Have Applied Differing

PUD eccwcncecccvecescosscescocsceccsecees

A. This Court Has Never Considered or Ruled Upon

the Issues of Whether the Appellate Courts Have

an Inherent Power to Ignore the Otherwise Un-

conditional Requirement of Rule 51 That an Ob-

jection on Grounds Distinctly Stated Must Be

Made to the Trial Court Before an Alleged De-

ficiency in Instructions to the Jury May Be Con-

sidered as Error or an Appeal Nor, if Such an

Inherent Power Does Exist, the Circumstances

Under Which That Power May Be Exercised ..

N @® DN ND ND =

INDEX (Continued).

B. The Existence of an Inherent Power to Reverse

a Jury Verdict and Require a New Trial in the

Absence of an Objection Below and the Circum-

stances, if Any, Under Which Such a Power May

Be Exercised, and the Sufficiency of an Objection

Made Below to Bring Before the Appellate Court

the Particular Error Asserted, Are Matters of

Grave Importance to the Efficiency of the Federal

Courts and to the Administration of Justice

Page

WN Sonn cneuntesesdetsnditusesotensanne 9

C. This Case Is an Appropriate One in Which to Con-

sider the Issues Presented Because the Appellate

Court Neither Considered Nor Cited Rule 51, and

Reversed Both on Grounds of Alleged Errors to

Which No Objection Was Made and as to Which

the Contention That an Objection Which Was

Made Was Not Sufficiently Specific Is Squarely

POE bdonunahucnsesscaaubenesonasenees 12

D. The Circuit Courts of Appeal Differ Widely in

Their Statements of the Standards Which Govern

the Inherent Power They Exercise to Make Ex-

ceptions to the Applicability of Rule 51 and the

Circumstances Under Which They May Exercise

We ED: cecuncesauddesesebucianceoeedun 13

Sk CUED 6:06 4ddudesdenndcadeutudeussenssuedens 17

APPENDIX:

Ree GE FS TD avn cecdcscccasusisdaceocass Al

Re ee ee I 6 dic Susdnccuccusedseseess Al2

Court of Appeals Order Denying Rehearing ............ Al3

Seeeieee GUTS TIED occ ccvccnsncesccéeccocces Al4

District Court Order Denying Motion for New Trial .... A24

Federal Rules of Civil Procedure, Rule 51 ........ bicue A25

TABLE OF CITATIONS.

Cases: Page

Appleyard v. Transamerican Press, Inc., 539 F. 2d 1026 (10th

Sh MED sid desdceedadesseudcenncdéescedsnduaseses< 15

Arkwright v. Philadelphia Electric Co., 427 F. 2d 1273 (3rd

Sk SEE oko uceccdudannsSGUnadeesewaexcedegeceres 17

Armit v. Loveland, 115 F. 2d 308 (3rd Cir. 1940) .......... 16

Baughman v. Cooper-Jarrett, Inc., 530 F. 2d 529 (3rd Cir.

SEED ended beamed he desescdsesnvecsedltecesececnnere 17

Callwood v. Callwood, 233 F. 2d 784 (3rd Cir. 1956) ....... 16

Cicinato v. McPheeters, 542 F. 2d 634 (4th Cir. 1976) ...... 15

Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 332 A. 2d

8) eee EDDA RRRA RASA SR ERNE IeeeeedeAdee 11

Fields v. Chicago R. I. Ry. Co., 532 F. 2d 1211 (8th Cir.

SD Geer icade tend setae hieeceNisesdetedeeessencees 15

Frederick P. Wiedersum Assoc. v. Nat Homes Const., 542 F.

ee GEG, GED ebvccncdsovencndctseenerececcs 15

Gibson v. Lockheed Aircraft Service, Inc., 350 U. S. 356, 76

S. Ce. SEG, FED Le. BA. TES CIBGS) cc cccccccccccccccces 7,16

Gregg v. Georgia, 96 S. Ct. 2909, 2934, 49 L. Ed. 2d at 886

(SS rrr errr Pree Ty TTT TTT TTT TT TTT Tee 8

Greiner v. Volkswagenwerk, 540 F. 2d 85 (3rd Cir. 1976)... 17

Hamil v. Bashline, 407 A. 2d 1366 (Pa. 1966) ............. 13

Hamil v. Bashline, 224 Pa. Super. 407, 307 A. 2d 57 (1973) 13

Hamling v. United States, 418 U. S. 87, 133, 94 S. Ct. at 2915,

4A 1, TE, BE at GD CIGVS) occcccccccsccccccccccccess 8

Harkins v. Ford Motor Co., 437 F. 2d 276 (3rd Cir. 1970) .. 17

Herman v. Hess Oil Virgin Island Corp., 524 F. 2d 772 (3rd

Ge, FIFE ocevccccccccscecccncesesveccccesccceseses 17

Hoffman v. Sterling Drug Inc., 485 F. 2d 132 (3rd Cir. 1973) 15

Ind. Dev. Bd. of Tr. Section, Ala. v. Fuqua Industries, 523 F.

2d 1226 (Sth Cir. 1976) .....ccccvcscccccecccceccens 15

Lewis v. Strickland Truck Lines, 505 F. 2d 164 (6th Cir. 1974) 15

Kolman v. Jacoby, 419 F. 2d 395 (3rd Cir. 1969) .......... 17

TABLE OF CITATIONS (Continued).

Cases (Continued): Page

Magneau v. Aetna Freight Lines, 360 U. S. 273, 279, 79 S. Ct.

at 1191, 3 L. Ed. 2d at 1232 (1958) ....cccccccccceces 16

McNello v. John B. Kelly, Inc., 283 F. 2d 96 (3rd Cir. 1960)

6, 15, 16

Morris v. Travisano, 528 F. 2d 856, 859 (1st Cir. 1976) .... 15

Morrissey v. National Maritime Union of America, 544 F. 2d

D> (aad Civ. GEG) oecdcccccdcnsceveuueenenen enue 15, 16

Palmer v. Hoffman, 318 U. S. 109, 119, 63 S. Ct. at 477, 87

hn BG. at FOS CIDER) 2c ccccccconcsduucceccseneeee 9

Pritchard v. Liggett & Myers Tobacco Company, 350 F. 2d 479

(SG Cie. TRGB) occcccccscvcstesteseceeneeee 15

Trent v. Atlantic City Electric Co., 334 F. 2d 847 (3rd Cir.

BOOS) ccccscocecccceseneseeéuesed pie a 15

United States v. Atkinson, 297 U. S. 157, 56 S. Ct. 391, 80

hn GG, SES CIES). vcccccsccececesesunsenne eee 8

Wead v. Dichmann, Wright & Pugh, 337 U. S. 801, 69 S. Ct.

S506, SS LL. SUS COPD oc ccuvdececcucseusaneu 8, 16

Weigand v. Weigand, 337 A. 2d 256 (Pa. 1975) ........... 11

Williams v. City of New York, 508 F. 2d 356 (2nd Cir. 1974) 15

Wojciechowski v. Long Airdox, 488 F. 2d 1111 (3rd Cir.

SOVS) occvcccccceccseneeeeséeeeeeeeeuene nnn 17

Statutes:

Federal Rules of Civil Procedure, 28 U. S. C., Rule 51 ..3, 4, 5, 6, 7,

8, 9, 10, 11, 12, 13, 16, 17

ae U. &S. GC. 8 URGCE) 0 ceccccccsceseseeueenel 2

Authorities:

Restatement of ‘Terts IE, 8 FED 2. cccccussccecosesuesesnue 13

2B Barron and Holtzhoff (Wright ed.) § 1104 ............. 10

9 Federal Practice and Procedure, Wright and Miller:

BESS ccocccccccvceteséeceseeneens enna 15

DARED ccccccvcccccccccedeseeesebeuuenesneennnnn 10

IN THE

Supreme Court of the United States

Octroser Term, 1976.

No.

H. N. SPENCER, M.D.,

Petitioner,

v.

HANNA M. AYOUB and MARGARET AYOUB, His Wife,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Petitioner, H. N. Spencer, M.D., prays that a Writ of

Certiorari issue to review the Judgment of the United

States Court of Appeals for the Third Circuit reversing

the Judgment of trial court and remanding for further pro-

ceeding, and the Order denying petitioner’s Petition for

Rehearing. —

CITATION OF OPINION BELOW.

The Opinion of Court of Appeals, Hanna M. Ayoub

and Margaret Ayoub, his wife, Appellants v. H. N.

Spencer, M.D., Appellee, has not been officially reported and

is set forth in the Appendix at page Al. The Opinion

of the District Court, Hanna M. Ayoub and Margaret

Ayoub, hijs wife, Plaintiffs v. Dr. H. N. Spencer, M.D., De-

fendant, has not yet been officially reported and is set forth

in the Appendix at page Al4.

2 Petition for Writ of Certiorari

JURISDICTION.

The Judgment of the Court of Appeals reversing th

Judgment of District Court was entered on February $8,

1977. A Petition for Rehearing filed on March 4, 1977 was

denied by Order entered March 28, 1977. The jurisdiction

of this Court is invoked under 28 U. S. C. § 1254(1).

QUESTIONS PRESENTED FOR REVIEW.

1. Did the Court of Appeals err in reversing on the

grounds that the instructions to the jury were inadequate

in the application of the law of contributory negligence to

the facts of the case and in stating the standard of conduct

required for a finding of contributory negligence in the

absence of any objection to any such inadequacy in the

court below in contravention of the requirements of Rule

51 of the Federal Rules of Civil Procedure?

2. Did the Court of Appeals err in reversing on the

ground that the instructions to the jury failed to make

clear that the jury must find that respondent’s conduct

was both negligent and a proximate cause, where the only

objection made at the trial did not specify or distinctly

state any such grounds in contravention of the requirements

of Rule 51 of the Federal Rules of Civil Procedure?

FEDERAL RULE OF CIVIL PROCEDURE INVOLVED.

This case involves the application of Rule 51 of the

Federal Rules of Civil Procedure, 28 U. S. C., Rule 51

which provides:

‘*. .. No party may assign as error the giving or

the failure to give an instruction unless he objects

thereto before the jury retires to consider its verdict,

stating distinctly the matter to which he objects and

the grounds of his objection. . . .”’ |

Rule 51 is set forth in full in the Appendix at page A25.

Petition for Writ of Certiorart 3

STATEMENT OF THE CASE.

This is a medical malpractice case which resulted in a

jury verdict in favor of the defendant Dr. Spencer, peti-

tioner herein. The plaintiffs’ motion for a new trial was

denied on January 28, 1976 and plaintiffs appealed, assert-

ing alleged deficiencies in the charge of the trial court. The

Court of Appeals reversed the Order of the trial court

denying plaintiffs’ motion for a new trial, and remanded

the cause for further proceedings. Petitioner’s Sugges-

tion for a Rehearing in Banc and Petition for Rehearing

were denied by the Court of Appeals.

The respondent Hanna M. Ayoub (respondent) was in-

jured in a fall at work and suffered pain in his back in

the thoracic area for which he was treated by other doc-

tors and chiropractor for five and a half weeks after which

he saw the petitioner, an orthopedist, who examined him,

prescribed a brace, and gave him an appointment for a

return visit two weeks later. Respondent kept the appoint-

ment for the return visit at which the petitioner checked

the brace for proper fit and advised respondent not to return

to work until further notice.

The only substantial factual dispute was whether or

not at this second visit respondent was given an appoint-

ment to return for a third visit two weeks later. Peti-

tioner testified that the appointment for a third visit was

given and introduced his office records showing the making

of the appointment and a notation that the respondent did

not keep it. Respondents testified that the appointment

was not given. There is no dispute however about the

fact that the respondent did not keep that appointment

and never came back to see petitioner again. Instead,

respondent returned to work and seven months later be-

came partially paralyzed and was operated on without suc-

cess. Respondents contended at the trial and their expert

medical witness testified that respondent’s alleged failure

to give a follow-up appointment for the third visit consti-

tuted malpractice. ' Petitioner contended that he did give

4 Petition for Writ of Certiorari

respondent an appointment for the third visit and that in

addition respondent’s failure to seek further medical at-

tention for seven months during which his symptoms con-

= unabated constituted contributory negligence on his

part.

The respondent’s expert medical witness testified that

the only fault to be found with petitioner’s treatment was

the failure on the occasion of the second visit to make a

follow-up appointment and that if such an appointment had

been made the petitioner’s treatment of respondent was

fully in accord with good medical practice. It was undis-

puted by expert witnesses on both sides that further treat-

ment was not warranted at the time of the second visit.

Respondents asserted in their brief on Appeal that the

trial Court’s charge was error because it inadequately set

forth the principles of contributory negligence and failed

to adequately relate those principles to the facts and be-

cause the charge misled the jury into believing that re-

spondent was barred from recovery if his failure to

procure additional medical treatment for the seven months

after his last visit contributed to his injury regardless of

whether or not that failure was negligent because the

charge intertwined the concepts of contributory negligence

and proximate casse. (Appellants’ Brief, pp. 12-15).

Petitioner argued that the charge was proper, and that

the Rule 51 requirement of objections on distinctly stated

grounds prevented assignment on appeal of the errors as-

serted because there was no objection whatever to any

failure to charge or any inadequacy of the charge on con-

tributory negligence, or to any failure to relate the law to

the facts, or to any failure to require negligence as well as

proximate cause before barring respondent on the grounds

of contributory negligence. The sole objection which was

made was that in charging the jury on contributory neg-

ligence the court described it in connection with proximate

cause which was misleading and confusing in that an im-

proper standard of proximate cause was used (N. T. 8-47).

a aad .

pata re

PNET OT re

Petition for Writ o/ Certiorart 5

Petitioner contended that in the context of this case,

in which the respondent had vigorously but unsuccessfully

argued below that the petitioner’s malpractice need not

be a proximate cause of the respondent’s injury but only

that the malpractice increased the risk of harm, the ob-

jection made did not constitute an objection to alleged in-

adequacy of the charge on contributory negligence or in

relating the facts to the law, or a failure to require neg-

ligence as well as causation before barring respondent from

recovery because of his contributory negligence. Peti-

tioner argued on appeal and in its brief that there was no

objection to any such asserted errors and that the objection

made did not distinctly state any such grounds as required

by Rule 51 and pointed out that the trial judge, in response

to the objection which was made, had further instructed

the jury on proximate cause without any mention of con-

tributory negligence and without any further objections or

suggestions by respondents; and that any error if present

was not of such nature as to permit the Appellate Court to

reverse the jury verdict under the Appellate Court’s prior

decisions permitting reversal without a specific objection

where the error was found to be so fundamental and so

highly prejudicial that failure to consider it would result

in a gross miscarriage of justice and where the jury’s find-

ings could not be justified on the evidence even under a

proper charge.

In their Reply Brief (p. 11) respondents argued that

the objection was sufficiently distinctly stated to advise

the Court that the jury was led to believe that if there was

proximate cause between respondent’s failure to return for

treatment and his injury he was barred from recovery re-

gardless of whether or not he was negligent, and that in

any event the error was fundamental so as to justify re-

versal without an objection (Reply Brief, p. 7).

The Appellate Court reversed the jury verdict on the

ground that ‘‘. . . the charge as a whole inadequately put

in issue the alleged contributory negligence of Mr. Ayoub.’’

6 Petition for Writ of Certiorari

(Opinion, p. A5) because the charge failed to explain ade-

quately the application of the law of contributory neg-

ligence to the facts of the case (Op. p. A7), failed to make

clear that the unreasonableness of respondent’s conduct

was a prerequisite to a finding of contributory negligence

(Op. A6) and failed to make clear that the standard of

conduct required of respondent was that of a reasonably

prudent person (Op. A7).

Nowhere in its opinion did the Appellate Court quote

or even refer to the only objection which was made. It

did not discuss or determine whether or not the grounds

stated related to any of the issues which were argued or

upon which the reversal was founded. The requirement

of Rule 51 that an objection be made on grounds distinctly

stated was totally ignored and that Rule was neither cited

nor referred to. The Appellate Court concluded that the

charge on the subject of contributory negligence left the

jury without guide or compass in reaching a decision, and

constituted fundamental error requiring a reversal, citing

McNello v. John B. Kelly, Inc., 283 F. 2d 96, 102-3 (3rd Cir.

1960).

The Appellate Court therefore reversed the jury’s

verdict in favor of petitioner for supposed inadequacies in

the charge to which no objection was taken in the trial

court and assumed without discussion that an objection

which was made was directed to the deficiencies it found to

exist. There was no consideration of the mandate of Rule

51 or circumstances under which that mandate might be

ignored.

DE Tl A ertennwentnns es

Petition for Writ of Certiorari 7

ARGUMENT

I. The Failure of the Appellate Court to Consider the Man-

date of Rule 51 of the Federal Ru’*s of Civil Procedure

That Alleged Deficiencies in Instructions May Not Be

Assigned as Error Unless Objected to Below on

Grounds Distinctly Stated and Its Failure to Consider

or Determine the Circumstances Under Which That

Mandate May Be Disregarded Present Issues of Great

Importance to the Administration of Justice in the

Federal Courts Which Have Never Been Considered

or Ruled Upon by This Court and to Which the Courts

of the Various Circuits Have Applied Differing Prin-

ciples.

A. This Court Has Never Considered or Ruled Upon

the Issues of Whether the Appellate Courts Have

an Inherent Power to Ignore the Otherwise Un-

conditional Requirement of Rule 51 That an Ob-

jection on Grounds Distinctly Stated Must Be

Made to the Trial Court Before an Alleged De-

ficiency in Instructions to the Jury May Be Con-

sidered as Error or an Appeal Nor, if Such an

Inherent Power Does Exist, the Circumstances

Under Which That Power May Be Exercised.

The court has never ruled upon the application of

effect of Rule 51 in any of its aspects. In Gibson v. Lock-

heed Aircraft Service, Inc., 350 U. S. 356, 76 S. Ct. 366,

100 L. Ed. 395 (1956) the court had granted certiorari

on the issue of whether an objection to the trial court’s

failure to give a requested instruction complied with Rule

51, but after argument the court found the case there in-

volved to be one which should be reversed in the exercise

of its supervisory powers over the lower federal courts and

did so, as a result of which the court found it unnecessary

to consider any question as to the application of Rule 51.

The court has not ruled upon any aspect of the effect or

application of Rule 51 since that reversal.

8 Petition for Writ of Certiorari

Rule 51 has since been cited in passing by the court

only twice; in Hamling v. United States, 418 U.S. 87, 133,

94S. Ct. at 2915, 41 L. Ed. 2d at 629 (1974) the court re-

ferred to the Rule in passing in a criminal case with re-

spect to the requirement of an opportunity to object out-

side the hearing of the jury, and in Gregg v. Georgia, 96

S. Ct. at 2934, 49 L. Ed. 2d at 886 (1976), another criminal

case, Rule 51 was referred to in passing. Prior to the re-

versal in the Gibson case the court had cited Rule 51 on

only one vecasion, noting that the party who had stated at

the conclusion of the trial court’s charge that he had no

exceptions could not urge errors in the charge before the

court on appeal. Wead v. Dichmann, Wright & Pugh, 337

U.S. 801, 69 S. Ct. 1326, 93 L. Ed. 1704 (1949).

Prior to the enactment of Rule 51 in 1938 this court

has recognized that appellate courts may notice errors to

which no objection has been made where the errors are ob-

vious, or if they seriously affected the fairness, integrity

or public reputation of judicial proceedings. United States

v. Atkinson, 297 U. S. 157, 56 S. Ct. 391, 80 L. Ed. 555

(1936).

But the court has not recognized the existence of any

such inherent power, vis a vis Rule 51’s unqualified re-

quirement that an objection be made with a distinct state-

ment of the grounds for the objection as a prerequisite

for assignment of error in appeal.

The cireuit courts of appeals state that they have an

inherent power to ignore Rule 51 where the error seems

to them to be obvious and prejindicial and the result of the

trial sufficiently extreme to constitute a gross miscarriage

of justice, or unjustifiable under any charge, (see pp. 14-17

infra); but this court has never decided or considered the

question of whether any such inherent power exists, nor

has it considered the criteria for the exercise of that power

if it does exist.

This court, similarly, has never considered the issue of

whether or not the requirement of a distinct statement of

ee

Petition for Writ of Certiorari 9

the grounds for an objection which was made was sufficient

to constitute an objection to the particular error assigned

on appeal. The Court has, however, stated without citation

of Rule 51, that a general exception to a charge is not suf-

ficient and that objections to a charge must be sufficiently

specific to bring into focus the precise nature of the alleged

error so that the trial court might have an opportunity to

give the correct charge. Palmer v. Hoffman, 318 U.S. 109,

119, 63 S. Ct. at 483, 87 L. Ed. at 653 (1943).

The issues of whether an appellate court has an in-

herent power to reverse a trial court’s judgment and a jury

verdict for an error not objected to at trial as required by

Rule 51, and what criteria are to be applied to the exercise

of that power, if it is found to exist, and whether the

ground stated for an objection was sufficiently distinct to

encompass and to direct the trial court’s attention to the

particular error assigned as such on appeal will therefore

be matters of first impression.

B. The Existence of an Inherent Power to Reverse

a Jury Verdict and Require a New Trial in the

Absence of an Objection Below and the Circum-

stances, if Any, Under Which Such a Power May

Be Exercised, and the Sufficiency of an Objection

Made Below to Bring Before the Appellate Court

the Particular Error Asserted, Are Matters of

Grave Importance to the Efficiency of the Federal

Courts and to the Administration of Justice

Therein.

Although the requirement that an objection be made

and the grounds for it be distinctly stated is procedural, a

jury verdict reversed without a specific objection to the

particular error deprives the initially successful litigant. of

his verdict, delays the conclusion of the litigation, and clogs

the trial courts with second trials to the same extent as

does any reversal. Reversals for errors not specifically

objected to below are far less justified than reversals for

10 Petition for Writ of Certiorari

errors in instructions misstating the applicable law after a

request by a party for a proper charge or an objection to

an improper one. By failing to object and to point out the

alleged error, the party has deprived the trial court of an

opportunity to correct the error, which may have been

entirely inadvertent, or to make a considered ruling upon

the matter, rightly or wrongly. See 2B Barron anv Hotrz-

HOFF (Wright ed.) § 1104, p. 458; 9 Feperan Practice anp

ProcepurE, Wright and Miller, § 2551, p. 623. If the

parties, who are familiar with the facts and the law of the

case, did not perceive the alleged error to be of sufficient

gravity or substance to warrant a specific objection at the

trial, it is not likely that the error would be of such magni-

tude in its effect upon the result of the trial to compel a

reversal under the vague general standards stated by the

Appellate Courts as applying to permit reversal despite

failure to comply with Rule 51.

The existence of an inherent power to reverse for

errors uot properly objected to and the circumstances under

which that power may be exercised, if it does exist, are

issues of ever increasing importance in times of increasing

factual and legal complexity in the cases submitted to juries.

The ‘‘malpractice crisis’’ has resulted in the trial of an

ever increasing number of malpractice cases of complex

medical and technical factual issues. The factual com-

plexity of such cases and their number make it ever more

important to require an objection directing the court’s

attention to any alleged error in the instructions to the

jury involving the parties’ factual contentions, and to re-

quire more stringently that requests for charges and spe-

cific objections be made to assist the court in properly

submitting the factual issues to the jury. An appellate

court should not be required to notice and rule upon an

alleged error which was not noticed by the parties at the

trial and which the trial court was not requested to correct

ae it had the opportunity to do so without'’a second

trial.

ee

PAE ETO Sr me

Petition for Writ of Certiorart 11

This Court’s affirmation of Rule 51 without any excep-

tion based on the gravity or the nature of the unobjected

to error will not lower the quality of justice administered

in the trial courts. This case was tried under Pennsylvania

law and the court’s diversity jurisdiction, and if it had

been tried in the Pennsylvania courts no error which was

not properly objected to, no matter how fundamental or

gross that error might be, would result in a reversal; Dil-

liplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 332 A. 2d

114 (1974), even where a constitutional issue is involved.

Weigand v. Weigand, 337 A. 2d 256 (Pa. 1975). The re-

fusal of the Pennsylvania Courts to permit such reversals

has not resulted in any lessening of the quality of the jus-

tice administered therein, but it has relieved them of the

burden of considering such allegations of error on appeal

and of retrying cases for a second time.

Strict enforcement of the requirements of Rule 51

does not lessen the quality of justice administered; on

the contrary, it would seem that in the present case resort

to such a power is made as a device for granting a new

trial where defendant’s verdict is justified by the evidence

and unassailable on any other ground. Here the Appellate

Court first adopted the contention of the respondents’

Brief as its statement of the objection which was made:

‘‘ Appellants’ attorney took exception on the ground that

the charge inextricably intertwined the issues of contribu-

tory negligence with that of proximate cause.”’ (Op. A4).

It made no citation of or reference to the actual objection,

which was that contributory negligence was discussed

‘¢ in connection with whether or not there was prox-

imate cause... .’’ and ‘‘... that an improper standard on

proximate cause was used, that it really should be 233 of

the Restatement.’’ (N. T. 8-47).

The Appellate Court then found a lack of clarity in

the statement of the applicable standard of care because

the charge ‘‘. . . did not make clear that the standard of

conduct required of plaintiff to avoid contributory neg-

ligence was that of a reasonably prudent person under

12 Petition for Writ of Certiorari

similar circumstances.’’ (Op. 7a). The Court did not

notice even in passing that the instruction it suggest was

in fact given: ‘‘Negligence is the failure of a reasonably

prudent person to exercise due care under the circum-

stances. ... It may also be the doing of something which a

reasonably prudent person would not do under the circum-

stances.’’ (N. T. 8-12). The Opinion thereupon concluded

that the charge complained of failed ‘‘. . . to relate the

parties’ contentions to the law of contributory negli-

gence... .’’ without recognition of the fact that it was the

trial court’s very mention of the petitioner’s factual con-

tention as to contributory negligence which was the only

stated ground for the objection.

If the courts should conclude that some errors are of

such character as to be outside the reach of Rule 51, it

should take this opportunity to delineate the type of errors

which are beyond its pale and to proclaim a standard ap-

plicable in all of the Circuits.

C. This Case Is an Appropriate One in Which to Con-

sider the Issues Presented Because the Appellate

Court Neither Considered Nor Cited Rule 51, and

Reversed Both on Grounds of Alleged Errors to

Which No Objection Was Made and as to Which

the Contention That an Objection Which Was

Made Was Not Sufficiently Specific Is Squarely

Presented.

The omission of the Appellate Court to cite or con-

sider Rule 51 requires that it at least be admonished to do

so in future cases where, as here, the applicability of the

Rule to the issues argued before it on appeal was clear

and those issues were briefed. The Appellate Court re-

versed in effect because it found the charge, which it viewed

as a whole, to be inadequate. It stated as grounds for a

reversal that the charge failed to include a statement of a

reasonably prudent man standard of conduct and failed to

properly relate the parties’ factual contentions to the ap-

plicable law. There was absolutely no objection at trial

Petition for Writ of Certiorart 13

to either of the alleged failures; respondents did not even

contend on appeal that any such objection existed and

neither they nor the Appellate Court cited any; and none

exists. The other premise for the finding of inadequacy

of the charge as a whole was that it did not make suf-

ficiently clear that unreasonableness of respondent ’s con-

duct was a prerequisite, in addition to causation, to a

finding of contributory negligence (Op. A6). Respondents

did object to the submission of any issue of contributory

negligence to the jury (N. T. 8-39), but that issue was re-

quired under the evidence to be submitted and the Appellate

Court so held (Op. A5). The only other objection made

was, stated in full:

‘¢ in addition to charging the jury on contribu-

tory negligence you brought it in in terms of whether

or not there was proximate cause. In discussing

proximate cause, in addition to what I have already

stated, it was in connection with whether or not there

was proximate cause that you discussed the question

of contributory negligence, and I really think that is it

misleading and confusing. I feel very strongly that an

improper standard on proximate cause was used, and

that it really should be 323 of the Restatement.”’

(N. T. 8-47)

(Emphasis added)

It is clear from the context, from the language, and

the specific reference to the Rule of § 323 of the Restate-

ment of Torts II that respondent’s objection was that,

under plaintiff’s theory of Hamil v. Bashline, 224 Pa.

Super. 407, 307 A. 2d 57 (1973), evidence of an increased

risk of harm should be sufficient proof of proximate cause

as to petitioner’s conduct but that it would be improper to

apply the same ‘‘increased risk of harm’’ proximate cause

rule to the respondent’s conduct as to which proof that the

conduct was in fact a proximate cause of his injury was

required.

14 Petition for Writ of Certiorari

The court had given the reasonably prudent man

charge at the beginning of its charge (N. T. 8-12). There-

after it proceeded to charge on the subsequent issue of

proximate cause dealing at length with the effect of evi-

dence of increased risk of harm on that issue. The trial

court had previously rejected respondent’s requests for

charge on respondent’s version of increased risk of harm.

At the conclusion of the first portion of the charge to the

jury respondents repeated their objection to the rejection

of that theory (N. T. 8-40-44) and then made the objection

which is noted above.

Petitioner’s brief strenuously argued that this objec-

tion did not comply with the requirements of Rule 51 that

the grounds be distinctly stated as applied to reversal

sought on the ground that unreasonableness of the conduct

of respondent was not required by the charge, but the Ap-

pellate Court failed to consider the context of the objection

in its Opinion or to discuss or decide whether the lack of

clarity it found was encompassed within the objection. This

aspect of the case therefore squarely presents the issue of

the scope of an objection with regard to a particular error

and the requirement of Rule 51 that the grounds for that

objection be distinctly stated.

D. The Circuit Courts of Appeal Differ Widely in Their

Statements of the Standards Which Govern the

Inherent Power They Exercise to Make Excep-

tions to the Applicability of Rule 51 and the Cir-

cumstances Under Which They May Exercise That

Power.

Reversal for errors in the trial court’s instructions to

the jury in the absence of an objection are said by the

1. That rejection of respondents’ contention was proper is clear

from the court’s rejection of that very contention upon reconsidera-

tion of the Hamil case on a subsequent appeal. Hamil v. Bashline,

407 A. 2 1366 (Pa. 1966). Respondents dropped this’ contention

on appeal.

Petition for Writ of Certiorart 15

various courts to be governed by various different stand-

ards and requirements. 1

The Third Circuit has stated that such reversal is jus-

tified only in an extreme situation where it is apparent on

the face of the record that the error is fundamental, and

so highly prejudicial that failure to consider it would result

in a gross miscarriage of justice. Hoffman v. Sterling

Drug Inc., 485 F. 2d 132, 139 (3rd Cir. 1973); McNello v.

John B. Kelly, Inc., 283 F. 2d 96, 102 (3rd Cir. 1960) ;

Pritchard v. Liggett € Myers Tobacco Company, 350 F. 2d

479, 486 (3rd Cir. 1965). A similar standard was applied

reversing a verdict in Frederick P. Wiedersum Assoc. v.

Nat Homes Const., 542 F. 2d 62, 66 (2nd Cir. 1976) and in

affirming the judgment in Fields v. Chicago R. I. Ry. Co.,

532 F. 2d 1211, 1214 (8th Cir. 1976) with the addition of a

requirement that the result be inconsistent with substantial

justice. It has been stated that the principle cannot be

applied unless the verdict could not be supported or justi-

fied on the evidence even under a properly worded charge.

Appleyard v. Transamerican Press, Inc., 539 F. 2d 1026,

1031 (10th Cir. 1976); Trent v. Atlantic City Electric Co.,

334 F. 2d 847, 859 (3rd Cir. 1964). The First Circuit and

the leading commentator would confine such reversals to

the exceptional case where the error has seriously affected

the fairness, integrity or public reputation of judicial pro-

ceedings, Morris v. Travisano, 528 F. 2d 856, 859 (1st Cir.

1976) ; 9 Feperat Rues anp Procepure, Wright and Miller,

§ 2558 at p. 675 (1971). Other verdicts have been affirmed

with a simple statement that the error was not fundamental

or plain; Cicinato v. McPheeters, 542 F. 2d 634, 635-6 (4th

Cir. 1976) ; Lewis v. Strickland Truck Lines, 505 F. 2d 164,

166 (6th Cir. 1974); still others were reversed with the

same statement. Jnd. Dev. Bd. of Tr. Section, Ala. v. Fuqua

Industries, 523 F. 2d 1226, 1239 (5th Cir. 1976). In Wil-

liams v. City of New York, 508 F. 2d 356, 362 (2nd Cir.

1974) the court identified plain error with the exceptional

ease requiring reversal in the interests of justice. In Mor-

16 Petition for Writ of Certiorari

rissey v. National Maritime Union of America, 544 F. 2d

19, 28 (2nd Cir. 1976) reversal was refused on the ground

that the case was not one in which it was apparent on the

face of the record that a miscarriage of justice occurred

because counsel had not properly protected his client by

timely objection.

This Court reversed on the ground of an impropriety

in the special interrogatories submitted to the jury which

had been objected to, but three justices dissented with a

statement of their continued belief that it was the law

‘*. ,. in civil cases in the Federal courts that, barring some

extraordinary circumstance, not here present, failure to

request a given issue to be submitted to a jury constitutes

a waiver of any right to such submission. The least

requisite for raising such failure on appeal is noticed to

the trial court by way of an objection.’’ Magneau v. Aetna

Freight Lines, 360 U.S. 273, 283, 79 S. Ct. at 1191, 3 L. Ed.

2d at 1232 (1959). In the Gibson case supra, the court re-

versed because it found the reversals to be necessary in

the interests of justice and in the exercise of its super-

visory powers over the lower courts. In Weade v. Dich-

man, supra, the court refused to consider an alleged error

because the appellant had taken no exceptions.

The Third Cireuit is notable for the variety of its

expositions of the standards which it considers applicable.

In McNello v. John B. Kelly, Inc., supra, the court re-

versed because it found the charge failed to relate the

complicated facts to the law, stating that it would not do so

unless the error in the charge was fundamental and highly

prejudicial and failure to consider it would result in a

gross miscarriage of justice, citing the same statement in

Callwood v. Callwood, 233 F. 2d 784, 788 (3rd Cir. 1956).

In so doing it distinguished Armit v. Loveland, 115 F. 2d

308 (3rd Cir. 1940) on the grounds that in that very similar

case the element of duty was not so critical an issue and

the charge not so deficient.

That court has on occasion simply refused to consider

an admitted error because Rule 51 was not complied with.

ee eee

Petition for Writ of Certiorart 17

Greiner v. Volkswwagenwerk, 540 F. 2d 85, 94 (3rd Cir.

1976); Baughman v. Cooper-Jarrett, Inc., 530 F. 2d 529,

533 (3rd Cir. 1976); Wojciechowski v. Long Airdox, 488

F. 2d 1111 (3rd Cir. 1973). It has affirmed with a simple

statement that the error was not fundamental. Arkwright

v. Philadelphia Electric Co., 427 F. 2d 1273, 1276 (3rd Cir.

1970); Kolman v. Jacoby, 419 F. 2d 395 (8rd Cir. 1969).

It has reversed with the same statement with the addition

of the statement that there was no gross miscarriage of

justice. Harkins v. Ford Motor Co., 437 F. 2d 276, 278

(3rd Cir. 1970). It has stated that the principle is ap-

plicable if at all only where the law was insufficiently par-

ticularized and related to the evidence in the case. Herman

v. Hess Oil Virgin Island Corp., 524 F. 2d 772 (3rd Cir.

1975).

It is submitted that the various statements upon which

the appellate courts rely to exercise an inherent power to

avoid the requirements of Rule 51 are purely subjective in

each of their variously phrased requirements. In sub-

stance, they provide a cloak to throw over the reversal of a

result which the appellate court did not like. Proper ad-

ministration of justice in the trial court and on the ap-

pellate level requires that Rule 51 be strictly enforced.

Strict enforcement will enhance the dispensation of justice

at trial by requiring the parties to assist the court in prop-

erly instructing the jury.

II. Conclusion.

Rule 51 on its face admits of no exceptions. It should

be strictly enforced. Enforcement of the Rule to prevent

the necessity for consideration of errors which the trial

court had no occasion to correct and to avoid the necessity

of retrials is a matter of importance to all of the trial

courts, the trial bar and the litigants. This case presents

an appropriate opportunity to consider the effect of Rule

51 since it involves both alleged errors to which there was

18 Petition for Writ of Certiorari

no objection at all and an alleged error as to which the

sufficiency of the objection is presented for decision. The

Petition should therefore be granted.

Respectfully submitted,

Wuauam F. Svuuzivan, Jr,

Barton L. Posz,

Post & Scueut, P.A.,

Attorneys for Petitioner,

H. N. Spencer, M.D.

ee

Appendix.

UNITED STATES COURT OF APPEALS

For tHe Turep Circuir

No. 76-1408

HANNA M. AYOUB and MARGARET AYOUB, His Wife,

Appeilants,

v.

H. N. SPENCER, M.D.,

Appellee.

AppgEaL From Fivxat JupGmMent ENTERED By THE UNITED

Srates Districr Court ror THE Eastern District oF PENN-

SYLVANIA, AND From THE OrpER oF THE LowEeR Court

Denyinc Puarntirr’s Motion ror New TRIAL.

Argued December 3, 1976

Before Rosenn, Forman and Garrnu, Circuit Judges

OPINION OF THE COURT

(Filed February 18, 1977)

Forman, Circuit Judge.

This is an appeal from a denial of a motion for new

trial of a medical malpractice action brought by Hanna

Ayoub and his wife, Margaret, to recover damages for

permanent paraplegia allegedly sustained by Mr. Ayoub as

a result of the negligence of Dr. H. N. Spencer, the defend-

ant physician. The complaint of the Ayoubs alleged that

(Al)

A2 Court of Appeals Opinion

they were subjects of a foreign nation’ and Dr. Spencer

was a citizen of Philadelphia, Pennsylvania, thus furnish-

ing diversity jurisdiction. The case went to trial in the

United States District Court for the Eastern District of

Pennsylvania to a jury, which returned a verdict for Dr.

Spencer. The trial Judge subsequently entered a final

judgment, after denying the Ayoubs’ motion for a new

trial.

Mr. Ayoub was employer by his brother, Naim Ayoub,

as a furniture refinisher, and had fallen on November 5,

1971, while handling a dresser at work. He allegedly in-

jured his back, for later that day he began experiencing

pain between his shoulders that radiated bilaterally from

his back around to the front of his chest. Mr. Ayoub was

unable to return to work and saw three doctors before being

referred by an agent of the workmen’s compensation car-

rier to the appellee, Dr. H. N. Spencer, an orthopedic spec-

cialist. Dr. Spencer saw Mr. Ayoub and his wife? on

December 14, 1971, at which time he conducted a short ex-

amination, took X-rays and prescribed a back brace, pain

medication and muscle relaxants. Additionally, Dr.

Spencer scheduled another appointment for December 27,

1971, during which he performed no examination other than

ascertaining if the brace fitted properly. There was sharply

conflicting testimony concerning whether Dr. Spencer sched-

uled another appointment for January 10, 1972 for Mr.

Ayoub, and whether he told Mr. Ayoub that he would be

able to return to light work on January 15, 1972. It is

agreed, however, that Mr. Ayoub never returned to see Dr.

Spencer and did go back to work on approximately January

15.

In early August 1972, Mr. Ayoub saw a general prac-

titioner who referred him to a neurosurgeon, Dr. Haft.

1. Later they claimed to be subjects of Jordan.

2. His wife, who spoke and understood English better than her

husband, accompanied Mr. Ayoub to defendant’s office and assisted

with the communication problem.

=

-.-

Court of Appeals Opinion A3

On August 10, 1972, while driving to see Dr. Haft, Mr.

Ayoub became permanently paralyzed.

Appellants, the Ayoubs, raise three issues. First, they

contend that the District Judge failed to instruct the jury

properly on contributory negligence. Second, they argue

that the District Judge erred in his charge on the issue of

proper diagnostic testing. Third, they urge that the Dis-

trict Judge erred in permitting defense counsel to attack

plaintiffs’ credibility on the basis of a document not re-

ceived in evidence.

At the close of evidence, the trial judge instructed the

jury on the issue of contributory negligence as follows:

‘‘Let me read that again: An injury may be said

to be proximately caused by an act or a failure to act

whenever it appears from the evidence in the case that

the act or the omission played a substantial part in

bringing about or actually causing the injury and that

the injury was either a direct result or a reasonably

probable consequence of the act or omission.

‘‘Tn that respect in a case such as this, because

of what I have mentioned to you, the testimony we

have heard about this kind of condition and its con-

sequences generally, you should consider the follow-

ing: In determining whether the acts of the defend-

ant were the proximate cause of the injury of which

the plaintiffs complain you may also consider whether

the husband-plaintiff, that is, Mr. Ayoub’s failure to

take subsequent medical care and treatment was a

substantial factor in bringing about those injuries.

The defendant in this case has raised the issue of

what we call contributory negligence. That is, if you

should find that what was a cause of this was the

plaintiff’s own conduct, failure to go get other medical

treatment, then you may conclude that he is barred

from recovery because his own conduct was a sub-

stantial factor in bringing about the injury, and in

A4 Court of Appeals Opinion

Pennsylvania a person who is what we say contrib-

utorily negligent is barred from recovery if their con-

duct was a substantial factor in bringing about the

injury.’’ (Tr. 8-22 to 8-23).

‘*The second factor if you conclude that is so and

Dr. Spencer was negligent is the item I mentioned

about contributory negligence. Even though Dr.

Spencer was negligent, and even though what he did

was a proximate cause of Mr. Ayoub’s injury, you

may now take up the question as to whether or not

- Mr. Ayoub himself was contributorily negligent. If

you conclude that he contributed to his own injury by

the same standard that was a proximate cause, that

is a substantial factor, as I defined it to you, then the

plaintiff is not entitled to recover and the verdict

should be in favor of Dr. Spencer.’’ (Tr. 8-23 to

8-24).

‘‘The plaintiff will be entitled to recover if you be-

lieve under the rules that I have given you he has

made out his case in the standards that I have men-

tioned showing that Dr. Spencer was negligent and

that was a proximate cause and also that he has not

been contributorily negligent.’’ (Tr. 8-35 to 8-36).

Appellants’ attorney took exception on the ground

that the charge to the jury inextricably intertwined the

issue of contributory negligence with that of proximate

cause.

Diversity of citizenship being the sole basis for fed-

eral jurisdiction here, Pennsylvania substantive law is

applicable. McNello v. John B. Kelly, Inc., 283 F. 2d 96,

99 (3d Cir. 1960). Under Pennsylvania law, Dr. Spencer

ons neeeed a en ei SCRE

Court of Appeals Opinion A5

had presented sufficient evidence to warrant submission of

the issue of contributory negligence to the jury.®

In examining an alleged erroneous instruction to the

jury, it is necessary to view the charge as a whole. Ely

v. Reading Company, 424 F. 2d 758, 760 (3d Cir. 1970).

Our function is to determine whether the charge, taken

as a whole and viewed in the light of the evidence, fairly

and adequately submits the issues in the case to the jury.

James v. Continental Insurance Co., 424 F. 2d 1064, 1065

(3d Cir. 1970). Applying this standard here, it is obvious

that the charge as a whole inadequately put in issue the

alleged contributory negligence of Mr. Ayoub.

In charging the jury that

‘‘if you should find that what was a cause of this was

plaintiff’s own conduct, failure to go get other medical

treatment, then you may conclude that he is barred

from recovery because his own conduct was a sub-

stantial factor in bringing about the injury, .. .’’

Tr. 8-22)

the trial court intertwined the issues of contributory neg-

ligence and proximate cause. ‘‘It is plan then that this

test of ‘substantial factor’ is a test of proximate causation

and only becomes relevant, if at all, after [the] negligence

{of Mr. Ayoub] has been shown.’’ McNello v. John B.

Kelly, Inc., supra, at 101; Dickerson v. American Sugar

Refining Co., 211 F. 2d 200, 202 (3d Cir. 1954). See 2

Harper & James, Torts §18.8 at pp. 1158-1161; Prosser,

Torts § 42, p. 244 (4th ed., 1971). See also the explanation

in Simon v. Hudson Coal Co., 350 Pa. 82 (1944). In the

present case the issue of whether or not Mr. Ayoub’s con-

duct was reasonable was a crucial one. In the charge, the

District Judge emphasized and made numerous references

to the issue of proximate cause, i.e. whether ‘‘ Mr. Ayoub’s

3. Dougherty v. Philadelphia National Bank, 408 Pa. 342

(1962) and cases therein cited; Brough v. Strathmann Supply Co.,

358 F. 2d 374 (3d Cir. 1966) and the cases therein cited; Walsh v.

Miehle-Gass-Desxler, Inc., 378 F. 2d 409 (3d Cir. 1967).

A6 Court of Appeals Opinion

failure to take subsequent medical care and treatment was

a substantial factor in bringing about those injuries.’’*

But the unreasonableness of Mr. Ayoub’s conduct was a

prerequisite to any finding of contributory negligence.

This should have been made perfectly clear to the jury.

We are convinced that this issue was not properly clarified

for the jury and that confusion may have resulted to ap-

pellants’ prejudice.

It is true that the court subsequently charged

‘‘you will then come to the key question, whether or

not the plaintiff has met his burden of persuasion,

proving by a preponderance of the evidence that Dr.

Spencer failed to exercise the care of an orthopedic

specialist or a reasonable man as I have described it.

Similarly you will have to make the same judgment

in respect to the defendant’s contentions of contrib-

utory negligence.’’ (Tr. 8-33 to 8-34).

However, a reading of the charge as a whole,® and con-

sidering its general effect leads to the conclusion that the

jury may have been misled into believing that if Mr.

Ayoub’s failure to seek further medical treatment con-

tributed to his injury, then he was barred from recovery

without regard for the reasonableness of his conduct. The

Supreme Court of Pennsylvania has warned that ‘‘[c]ourts

must be careful not to confuse or equate contributory neg-

ligence with proximate cause.’’ Crane v. Neal, 389 Pa. 329,

332 (1957), overruled on other grounds, McCay v. Phila.

Elec. Co., 447 Pa. 490 (1972).° Here, these issues were so

intertwined in the instructions that a proper understand-

4. Tr. 8-22.

5. Tr. 8-6 to 8-52.

6. Tronically Crane v. Neal was overruled because it, too, failed

to clarify properly the distinction between contributory negligence

and proximate cause. See, McCay v. Phila. Elec. Co., 447 Pa. 490,

495 (1972).

—r = _——

ee ee

© cto" noite ee

EG we Ee

Court of Appeals Opinion A7

ing of the separate questions for determination was highly

unlikely.?7 See Smith v. Clark, 411 Pa. 142 (1963).

Moreover, the court failed to explain adequately to the

jury the application of principles of the law of contrib-

utory negligence to various possible factual conclusions at

which they might arrive. Although the trial judge in-

structed the jury that it was to find whether Dr. Spencer

‘‘failed to exercise the care of an orthopedic specialist or

a reasonable man as I have described it. Similarly you

will have to make the same judgment in respect to the

defendant’s contentions of contributory negligence,’’ he

did not make clear that the standard of conduct required

of plaintiff to avoid contributory negligence was that of a

reasonably prudent person under similar circumstances.®

This failure allowed the jury to employ any standard it

might choose; indeed, as explained above, it allowed the

jury to find contributory negligence based solely upon

proximate cause. See, Almaraz v. Universal Marine Corp.,

472 F. 2d 123 (9th Cir. 1972).

The trial court charged on the law of contributory

negligence only in the most general and inadequate terms,

entangled with the law of proximate causation. While a

comprehensive review of the evidence is not generally re-

quired, the District Court’s failure, here, to relate the

parties’ contentions to the law of contributory negligence

left the jury without ‘‘guide or compass’’ to aid it in ra-

7. What the jury ultimately found, of course, is beyond our

knowledge. In determining whether erroneous instructions require

the grant of a new trial, whether such instructions did or did not

bring about the verdict is not crucial. Malat v. Riddell, 383 U. S.

569 (1966); Vaughn v. Philadelphia Trans. Co., 417 Pa. 464, 468

(1965). If it appears that such instructions might have been re-

sponsible for the verdict, a new trial is mandatory. Sunkist Grow-

ers, Inc. v. Winckler & Smith Citrus Products Co., 370 U. S. 19

(1962) ; Riesberg v. Pittsburgh & Lake Erie R. R., 407 Pa. 434

(1962).

8. See Tiller v. Atlantic Coast Line R. R., 318 U.S. 54, 67

(1942) ; Baltimore & Potomac R. R. v. Jones, 95 U. S. 439 (1877) ;

W. Prosser, Handbook on the Law of Torts, 153-68 (3d ed. 1964).

A8 Court of Appeals Opinion

tionally reaching a decision. This constituted fundamental

error requiring reversal. McNello v. John B. Kelly, Inc.,

supra, at 102-103.

Since there will be a new trial, it would seem desirable

to consider briefly appellants’ remaining contentions sub-

mitted on this appeal that the District Judge erred in

charging on the issue of proper Ciagnostic testing and in

permitting defense counsel to attack appellant’s credibility

on the basis of a document not received in evidence.

Appellants contend that the District Judge erred in

failing to charge their Supplemental Request No. 10,° Ac-

tually, the District Judge did not charge Appellants’

Request No. 10 as proposed but did charge, in pertinent

part, on diagnostic testing:

‘*Y instruct you that if you conclude that the testi-

mony supports the notion that there are a variety of

ways of performing these tests that Dr. Spencer is not

obliged to perform all of the tests or only half of the

tests. It would be up fo you to determine if what he

did, even though he may not have done all that some

other doctor said he should do, whether or not never-

theless what he did under all the circumstances was in

keeping with the standard that he should have honored

as an orthopedic specialist at that time, ...’’ (Tr.

8-17 to 8-18).

9. “In this case there has been presented competent expert testi-

mony regarding the appropriate examinations and tests which

should have been employed by a specialist in orthopedic surgery

in order to evaluate or properly diagnose the presence or absence

of damage to a thoracic intervertebral disc. As you will recall,

the expert testimony included the necessity for testing numbness

or ‘sensory disturbances’. If you find from the evidence in this

case that the defendant, Dr. Spencer, suspected or should have

suspected a possible thoracic disc injury to Mr. Ayoub and that

he failed to properly and adequately test for numbness or ‘sen-

sory disturbances’ by utilizing the tests or examinations referred

to by the several expert physicians who testified in regard

thereto, you may find the defendant liable to plamtiffs for the

consequences of his failure to conform to the requisite standard

of care.” (App. lla)

Court of Appeals Opinion A9

Elsewhere in the charge the District Judge defined

such ‘‘standard’’ as follows:

‘*A physician who is a specialist in orthopedic surgery

is required to possess and to use in the treatment of

a patient the skill and knowledge usually possessed

by orthopedic surgeons in the same or similar locality

giving due regard to the advanced state of the profes-

sion at the time of treatment... .’’ (Tr. 8-14).

Appellants contend that the court ignored the uncon-

tradicted testimony of defendant’s own expert witnesses

that various neurological tests should have been performed

by Dr. Spencer. Normally, a party is bound by the un-

contradicted testimony of his own expert witnesses. Evans

v. Philadelphia Transportation Co., 418 Pa. 567 (1965).

However, here, a number of witnesses expressed diver-

gent opinions. Thus, it was within the province of the

jury to determine which opinions it would believe and

which it would discredit. Each expert’s testimony tended

to qualify the testimony of the preceding experts.

It was the jury’s role to decide whether each expert’s

opinion was modified by the qualifications placed thereon

by the other experts. Slater v. Erie Lackawanna Ry., 300

F. Supp. 1, 3 (W. D. Pa. 1969), aff’d per curiam, 411 F. 2d

1015 (3d Cir. 1969). The District Judge’s charge informed

the jury that if it found the expert testimony on diag-

nostic testing to be contradictory, the jury was to decide

whether defendant’s conduct ‘‘was in keeping with the

standard that he should have honored as an orthopedic

specialist at that time... .’’ Taken in conjunction with

the definition of standard to which the District Judge

referred as above set forth, the charge cannot be said to be

erroneous.

Finally, appellants assert that the court erred in al-

lowing defense counsel to attack appellants’ credibility

during his closing argument based on Jefferson Hospital

A10 Court of Appeals Opinion

records which were not in evidence.'® Appellants argue

that defense counsel’s reference to the hospital records

was improper and that the District Judge’s comments were

not adequate to cure the error.

During his closing speech to the jury, appellee’s coun-

sel argued that Mr. Ayoub’s trial testimony was incon-

sistent with his medical history as recorded in Lankenau

Hospital and Jefferson Hospital. The Lankenau records,

which had been introduced into evidence had been entered

by Dr. Richter, a witness for Mr. Ayoub. The Jefferson

Hospital records were never introduced into evidence.

Dr. Richter testified that when a patient is referred

from Lankenau Hospital to Jefferson Hospital, a copy of

his entire chart is generally transmitted along with the

patient. He stated, ‘‘[t]his is so the continuity care is

not lost and it is a useful thing, but I am certain part of

the history would have been gotten from me and some of

it gotten directly from Mr. Ayoub. I don’t know.”’ (Tr.

3-114).

10. During defense counsel’s closing argument to the jury, the

following colloquy took place:

“Mr. Post [Defense Counsel] : * * * I just ask you to use

as Mr. Litvin [Plaintiffs Counsel] said your own common sense.

He goes to another hospital. Does that hospital pick up the his-

tory from the previous hospital? Maybe they do. Look at that

history in Jefferson Hospital. See if it is a word for word his-

tory from Lankenau.

“Mr. Litvin: Your Honor, I must object. Neither Mr.

Post nor I have put those Jefferson Hospital records into evi-

dence to my knowledge.

* * *

“Tue Court: There was testimony about what they

said and the jury will have to recall the testimony about that.

I show the Lankenau Hospital record, not the Jefferson.

“Mr. Litvin: Your Honor, there was testimony by Dr.

Richter, I believe, as to how those things are put together, but

there was no testimony as to what was or was not in the various

Jefferson records. .

“Tue Court: I think he did speak to the history being

somewhat similar and his giving a guess maybe it was carried

over. The jury will recall that testimony.”

(Tr. 7-121 to 7-122).

Court of Appeals Opinion All

Appellants contend that Dr. Richter’s testimony was

not concerned with the content of the Jefferson medical

history and therefore defense counsel’s reference to the

contents of the history constituted error. Indeed, Dr.

Richter had never even seen the Jefferson chart on Mr.

Ayoub. His testimony in this regard was directed entirely

toward a general practice of Jefferson Hospital in obtain-

ing their medical histories as taken at Lankenau Hospital.

The remarks of counsel were required to be confined to

the evidence admitted in the case and reasonable infer-

ences drawn therefrom. Watn v. Penn. R. R. Co., 255 F. 2d

854 (3d Cir. 1958); Robinson v. Penn. R. R. Co., 214 F. 2d

798 (3d Cir. 1954). Reversible error is committed when

counsel’s closing argument to the jury introduces extra-

neous matter which has a reasonable probability of in-

fluencing the verdict. Rommell-McFerron Co. v. Local

U. No. 369, Int. Bro. of Elec. Wkrs., 361 F. 2d 658 (6th

Cir. 1966) ; Twachiman v. Connelly, 106 F. 2d 501 (6th Cir.

1939).

To the extent defense counsel, here, implied that the

Jefferson Hospital history was based on a second, inde-

pendent contradictory statement by Mr. Ayoub, his re-

maras were improper and were not justified by the record.

Furthermore, the District Judge’s comments" were not

sufficient to mitigate the prejudicial effect which may have

resulted. The jury should have been instructed at least

to disregard counsel’s reference to the absent Jefferson

Hospital records; not merely to ‘‘recall the testimony

about that.’’

For the reasons stated above, the District Court’s

order denying plaintiffs’ Motion for New Trial is re-

versed and the case will be remanded to the District Court

for further proceedings consistent with this opinion.

11. See footnote 10, supra.

Al2 Court of Appeals Judgment

UNITED STATES COURT OF APPEALS

For tue Turrep Crracuir

No. 76-1408

HANNA M. AYOUB and MARGARET AYOUB, his wife,

Appellants

v.

DR. H. N. SPENCER, M.D.

(D. C. Civil Action No. 73-2833)

On AppeaL From tue Unrrep States Disrraicr Court

FOR THE Eastern District or PENNSYLVANIA

Present: Rosenn, Forman and Gartn, Circuit Judges

JUDGMENT.

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Pennsylvania and was argued by counsel on December 3,

1976.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court, filed on January 28, 1976, be, and the same is

hereby reversed and the cause is remanded to the District

Court for further proceedings consistent with the opinion

of this Court. Costs taxec against the appellee.

ATTEST:

M. Euizasets Fercuson

Chief Deputy Clerk

February 18, 1977

Court of Appeals Order Al13

UNITED STATES COURT OF APPEALS

For tHe Triep Crrecuir

No. 76-1408

HANNA M. AYOUB and MARGARET AYOUB, his wife,

Appellants

Vv.

H. N. SPENCER, M.D.

SUR PETITION FOR REHEARING.

Present: Serrz, Chief Judge, Formayn, Van Dusen,

Auptsert, Apams, Gispons, Rosenn, HunTER,

Wels, and Gartn, Circuit Judges.

The petition for rehearing filed by H. N. Spencer,

M.D., Appellee, in the above entitled case having been sub-

mitted to the judges who participated in the decision of

this court and to all the other available circuit judges of

the cireuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and

a majority of the circuit judges of the circuit in regular

active service not having voted for rehearing by the court

in bavic, the petition for rehearing is denied.

By the Court,

/s/ Max Rosenn

Judge

Dated: March 28, 1977

Al4 District Court Memorandum

IN THE

UNITED STATES DISTRICT COURT

For tHe Eastern District or PENNSYLVANIA

Civil Action No. 73-2833

HANNA M. AYOUB and MARGARET AYOUB, his wife

v.

DR. H. N. SPENCER, M.D.

MEMORANDUM AND ORDER.

Becutte, J. January 27, 1976

This medical malpractice action was tried before a

jury and a verdict was returned in favor of defendant.

The factual background of the case was as follows: On

November 5, 1971, plaintiff Hanna Ayoub fell while at

work. During the course of the succeeding nine months,

plaintiff was treated by several physicians for back pain

apparently resulting from his fall. Defendant is an ortho-

pedic specialist, and he examined plaintiff twice in Decem-

ber, 1971. One of the crucial issues at trial was whether,

as plaintiffs contended, defendant scheduled no further

appointments to examine Hanna Ayoub or, as defendant

contended, an appointment was made for January 10, 1972,

which plaintiff failed to keep. Exactly seven months after

this crucial date, Hanna Ayoub became paralyzed from the

waist down. The cause of the paralysis was a ruptured

thoracic dise at T-7-8, the area of the back which had been

giving plaintiff pain since his fall the previous November.

The paralysis of the lower half of Hanna Ayoub’s body

is total and permanent.

Presently before the Court is plaintiffs’ motion for a

new trial. In addition to the general interests of justice,

plaintiffs contend that there are five specific grounds which

District Court Memorandum Al5

require that a new trial be granted. We will consider

plaintiffs’ arguments seriatim.

The first ground raised by plaintiffs is that the Court’s

charge to the jury ‘‘inextricably intertwined the issue of

proximate cause of Dr. Spencer’s conduct with the alleged

contributory negligence of Mr. Ayoub.’’' We believe that

plaintiffs adequately raised this objection at trial [N. T.

8-47] and, therefore, may now properly assign it as error.

The Court also believes, however, that an examination of

the entire charge shows that the jury was clearly and ade-

quately instructed on the proper method by which to de-

cide the issue of liability. If from the entire charge, read

as a whole, it appears to the Court, as it does here, that the

jury has been fairly and adequately instructed, then the

requirements of the law are satisfied. Smith v. Pressed

Steel Tank Co., 66 F. R. D. 429, 433 (E. D. Pa. 1975), aff’d

mem., 525 F. 2d 1404 (3d Cir. 1975).

Subsequent to the point in the Court’s charge where

plaintiffs claim the ‘‘intertwining’’ took place [N. T. 8-22

to 8-23], the Court stated the proper decisional process as

follows: ‘‘Even though Dr. Spencer was negligent, and

even though what he did was a proximate cause of Mr.

Ayoub’s injury, you may now take up the question as to

whether or not Mr. Ayoub himself was contributorily neg-

ligent.’’ [N. T. 8-23 to 8-24.] (Emphasis added.) Later in

the charge, the Court stated: ‘‘The plaintiff will be en-

titled to recover if you believe under the rules that I have

given you he has made out his case in the standards that I

have mentioned showing that Dr. Spencer was negligent

and that was a proximate cause and also that he has not

been contributorily negligent.’’ [N. T. 8-35 to 8-36.] (Em-

phasis added.) Finally, in response to various objections

by plaintiffs’ counsel, the Court again charged the jury on

the proximate cause issue. [N. T. 8-51 to 8-52.) There was

no mention made of contributory negligence at that time.

We do not believe that the instructions were confusing or

misleading.

1. Brief in Support of Motion for New Trial, at 4.

Al6 District Court Memorandum

The second ground advanced by plaintiffs is that the

Court failed in its charge to explain or define for the jury

the standard by which it was to determine whether or not

Hanna Ayoub was contributorily negligent. While plain-

tiffs did object to the issue of contributory negligence being

submitted to the jury at all [N. T. 8-39 to 8-40], there was

never any protest during the trial concerning the way in

which the issue was presented in the Court’s charge. Thus,

on its face, Fed. R. Civ. P. 51 precludes plaintiffs from now

seeking a new trial on that ground. However, the Third

Circuit has tempered the impact of Rule 51 by holding

that when the error is fundamental, an unobjected to charge

may be attacked on a motion for new trial. Morley v.

Branca, 456 F. 2d 1252, 1253 (3d Cir. 1972); accord,

Stephenson v. College Misericordia, 376 F. Supp. 1324, 1326

(M. D. Pa. 1974). A fundamental error has been com-

mitted if ‘‘the court’s charge was totally inadequate to pro-

vide even the barest legai guideposts to aid the jury in ra-

tionally reaching a decision.’’ McNello v. John B. Kelly,

Inc., 283 F. 2d 96, 102 (3d Cir. 1960). This Court does not

believe that such an error was committed in this case.

The Court’s charge explained to the jury that ‘‘the

plaintiff’s claim is based on negligence, that is, that the

defendant failed to possess or employ the skill required of

him as an orthopedic specialist or that he failed to act as a

reasonable man under the circumstances, or both.’’ [N. T.

8-13 to 8-14.] The Court explained the ‘‘reasonable man’’

negligence standard as follows:

In defining negligence it is important to keep in mind

that the mere happening of an accident does not with-

out more mean that someone or anyone was negligent.

Negligence is the failure of a reasonably prudent per-

son to exercise due care under the circumstances.

That’s the kind of conduct that would apply to any

person, the so-called reasonable person—yourself, my-

self, in conducting our normal affairs. It may also be

the doing of something which a reasonably prudent

person would do under the circumstances. [N. T. 8-12.]

District Court Memorandum Al7

This standard was clearly tied to the question of con-

tributory negligence in our instructions. The Court stated:

[Y]Jou will have to assess all the evidence and deter-

mine what happened and as a result of that you will

then come to the key question, whether or not the

plaintiff has met his burden of persuasion, proving by

a preponderance of the evidence that Dr. Spencer

failed to exercise the care of an orthopedic specialist

or a reasonable man as I have described it. Similarly

you will have to make the same judgment in respect to

the defendant’s contentions of contributory negligence.

[N. T. 8-33 to 8-34.]

Earlier in the charge, the Court stated:

The defendant in this case has raised the issue of what

we call contributory negligence. That is, if you should

find that what was a cause of this was the plaintiff’s

own conduct, failure to go get other medical treatment,

then you may conclude that he is barred from recovery

because his own conduct was a substantial factor in

bringing about the injury.... [N. T. 8-22.) (Empha-

sis added.)

The Court believes that the issue of Hanna Ayoub’s

contributory negligence was properly presented to the jury

for decision and that a reading of the charge as a whole

reveals that fair and adequate instructions were provided

to aid the jury in its task.

Plaintiffs’ third argument is that the Court’s refusal

to give three of their requested points for charge was error.

[Plaintiffs’ Request for Charge 6, 7; Plaintiffs’ Supple-

mental Request for Charge 11.] Claiming Judge Cercone’s

opinion in Hamil v. Bashline, 224 Pa. Super. 407, 307 A. 2d

57 (1973), as supporting authority, the requested points

for charge asserted that a jury finding of negligence on the

part of Dr. Spencer, coupled with a finding either that this

negligence increased the risk of paralysis to Mr. Ayoub or

A18 District Court Memorandum

that the paralysis resulted because of Mr. Ayoub’s reliance

upon Dr. Spencer’s performance of medical services would,

without more, establish causation and liability. See Re-

statement (Second) of Torts § 323 (1965). This is a mis-

reading of Hamil and a misstatement of the law in Penn-

sylvania. Cohen v. Kalodner, 236 Pa. Super. 129, 345 A.

2d 235 (1975) (Cercone, J.). Although the Superior Court,

in Hamil v. Bashline, supra, expressly accepted Section 323

of the Restatement (Second) of Torts as the law of Penn-

sylvania, it also specifically stated how it interpreted that

provision:

The defendant is not, under Section 323, liable merely

for having increased the risk of death, but the evidence

of the increased risk of death is under subsection (a)

of that section for the jury’s consideration on the fac-

tual issue whether the death was caused by defendant’s

failure to use reasonable care. 224 Pa. Super. at 417,

307 A. 2d at 62.

Plaintiffs still have the burden of proving causation in

medical malpractice cases in Pennsylvania. This Court’s

charge on the issue of causation was as follows:

In deciding whether or not if there was negligence

that negligence was a proximate cause of Mr. Ayoub’s

injury, you may consider together with the other evi-

dence that you will consider in arriving at that deter-

mination whether or not the act or the failure to act

2. Section 323 of the Restatement (Second) of Torts provides

as follows:

“One who undertakes, gratuitously or for consideration, to ren-

der services to another which he should recognize as necessary

for the protection of the other’s person of things, is subject to

liability to the other for physical harm resulting from his failure

to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of

such harm, or

(b) the harm is suffered because of the other’s reliance

upon the uiidertaking.”

ON ee a A Ne Bie

PUR, he re we

District Court Memorandum A19

by Dr. Spencer increased the risk of harm to Mr.

Ayoub or whether the harm was suffered because of

Mr. Ayoub’s reliance upon the advice and treatment

that Dr. Spencer gave him. [N. T. 8-52.]

We believe that this instruction conforms to the law as it

now exists in Pennsylvania * and that there was no error

committed in refusing plaintiffs’ requested points for

charge.

The fourth ground which plaintiffs assert is that it

was erroneous to allow defense counsel to make statements

during his closing argument based on hospital records

3. The Court notes that, in conformity with the actual language

of Section 323, the above-quoted charge employed the disjunctive

conjunction “or” when outlining the factors which might be con-

sidered by the jury in determining the question of proximate cause.

There is some question, however, as to whether the Pennsylvania

courts accept this position or require instead that both increased risk

of harm and reliance be shown in order to obviate the common law

necessity for evidence of reasonable medical certainty that the injury

was in fact caused by defendant’s failure to exercise reasonable care.

In DeJesus v. Liberty Mutual Insurance Co., 423 Pa. 198, 223 A. 2d

849, 850 (1966), Section 323 was commented on as follows:

“The import of that section is that negligent performance or

nonperformance must increase the risk of harm and that there

must be reliance by the injured plaintiff upon the defendant’s

performing the service he has undertaken to render. Appellant’s

complaint fails to aver or establish either element and sets forth

no cause of action.” (Emphasis added.)

Despite the verbatim quotation of this passage in Hamil v. Bashline,

supra, 307 A. 2d at 61-62, the Superior Court’s opinion also clearly

states that:

“Subsections (a) and (b) [of Section 323] permit that causal

connection [between the physical harm and defendant’s failure

to exercise reasonable care] to be proved by evidence that de-

fendant’s failure increased the risk of such harm as was suffered

by plaintiff or by evidence that the harm was suffered because

of reliance on the defendant’s undertaking.” 307 A. 2d at 61

(emphasis added).

Rather than speculate as to how the Pennsylvania courts actually

construe this provision, we simply note that even if the disjunctive

approach adopted by this Court is not the accepted one, our instruc-

tion to the jury eased plaintiffs’ burden of proof on the causation

issue and thus was not prejudicial.

A20 District Court Memorandum

which were not in evidence. During the trial, as part of

his attempt to raise doubts about the credibility of Mr.

Ayoub, defense counsel pointed out discrepancies between

Mr. Ayoub’s testimony at trial concerning the events lead-

ing up to his paralysis and the histories contained in the

records of Lankenau Hospital and Thomas Jefferson Uni-

versity Hospital, which histories defense counsel alleged

had been obtained from Mr. Ayoub. On cross-examination,

Dr. Howard A. Richter testified that he had personally

taken the handwritten admission history contained in Mr.

Ayoub’s Lankenau Hospital records and he read the his-

tory to the jury at the request of defense counsel. [N. T.

3-81 to 3-86.] When questioned concerning the Jefferson

Hospital records, however, Dr. Richter explained to de-

fense counsel that he had ‘‘never seen the inpatient record

from Jefferson.’’ [N .T. 3-86.] On redirect, Dr. Richter

responded to a query from plaintiffs’ counsel concerning

the Jefferson Hospital record as is set forth in the margin.‘

While Dr. Richter had not seen the history in the Jefferson

Hospital records, it was clearly his position that it must

have been at least partially based on the Lankenau Hos-

pital history for which he was responsible.

During defense counsel’s closing argument to the jury,

the following colloquy took place:

Mr. Post [Defense Counsel]: * * * I just ask

you to use as Mr. Litvin [Plaintiffs’ Counsel] said

4. “Q. Are you able to tell us from your knowledge not only in

this case but of how hospitals work generally and specifically

Jefferson Hospital, are you able to tell us if they do have a

history similar to what you have been asked about, how that

came about?

“A. Well, when a patient is referred from Lankenau to the

Jefferson rehab hospital, one of the social workers makes a Xerox

copy of the entire chart and sends it down to Jefferson with the

patient so they would clearly have my handwritten history as it

was plus all the rest of the records. This is so the continuity

care is not lost and it is a useful thing, but J am certain part of

the history would have been gotten from me and some of it gotten

directly from Mr. Ayoub. I don’t know.” [N. T. 3-114.]

(Emphasis added. )

District Court Memorandum A21

you own common sense. He goes to another hospital.

Does that hospital pick up the history from the previ-

ous hospital? Maybe they do. Look at that history

in Jefferson Hospital. See if it is a word for word his-

tory from Lankenau.

Mr. Litvin: Your Honor, I must object. Neither

Mr. Post nor I have put those Jefferson Hospital

records into evidence to my knowledge.

Tue Court: There was testimony about what they

said and the jury will have to recall the testimony

about that. I show the Lankenau Hospital record, not

the Jefferson.

Mr. Litrvix: Your Honor, there was testimony by

Dr. Richter, I believe, as to how those things are put

together, but there was no testimony as to what was

or was not in the various Jefferson records.

Tue Court: I think he did speak to the history

being somewhat similar and his giving a guess maybe

it was carried over. The jury will recall that testi-

mony. [N. T. 7-121 to 7-122.]

Plaintiffs’ position is that defense counsel’s reference

to the Jefferson Hospital records was improper and preju-

dicial and that the Court’s comments were not adequate to

cure the error. We do not agree. Dr. Richter’s testimony

set forth in footnote 4 is circumstantial evidence that the

history contained in the Jefferson Hospital records was

consistent with the Lankenau history. ‘‘To the extent that

defense counsel’s remark to the jury merely suggested

that the Jefferson history, as well as the Lankenau history,

differed from Mr. Ayoub’s trial testimony, we believe that

it was sufficiently supported by evidence in the record.

However, the further implication in defense counsel’s re-

mark that the Jefferson history was based on a second,

A22 District Court Memorandum

independent statement by Mr. Ayoub which contradicted

his trial testimony was improper and not justified by the

record. The Couri’s comments on the objection raised by

plaintiffs’ counsel made clear that the Jefferson Hospital

records had not been placed in evidence. Additionally,

these comments undercut the unsupported implication of

defense counsel’s remark by suggesting that the testimony

had been that the Jefferson history was based upon the

Lankenau record, although leaving it to the jury to recall

on its own precisely what that testimony had been. The

Court believes that it adequately dispelled any prejudicial

effect resulting from defense counsel’s remark. However,

even if we now believed our comments to have been insuf-

ficient, we would not grant a new trial on this ground.

The Court does not believe that this brief comment by

counsel could have had any lingering prejudicial effect on

the jury such as to make the refusal of a new trial ‘‘in-

consistent with substantial justice.’? Fed. R. Civ. P. 61;

see Kremser v. Keithan, 56 F. R. D. 88 (M. D. Pa. 1972).

Plaintiffs’ fifth contention is that the Court’s instrue-

tions to the jury concerning the issue of proper diagnostic

testing was erroneous. The pertinent part of the charge

stated:

I instruct you that if you conclude that the testi-

mony supports the notion that there are a variety of

ways of performing these tests that Dr. Spencer is not

obliged to perform all of the tests or only half of the

tests. It would be up to you to determine if what he

did, even though he may not have done all that some

other doctor said he should do, whether or not never-

theless what he did under all the circumstances was

in keeping with the standard that he should have hon-

ored as an orthopedic specialist at that time. ...

[N. T. 8-17 to 8-18.] (Emphasis added.)

Plaintiffs contend that the Court’s charge: instructed

the jury that defendant was not obligated to perform vari-

ous tests which several of defendant’s own expert wit-

District Court Memorandum A23

nesses testified on cross-examination should have been per-

formed. While it is true that a party is bound by the

testimony of his own witnesses, this rule applies only

where that testimony is not contradicted or impeached by

other evidence. Slater v. Erie Lackawanna Ry., 300 F.

Supp. 1, 3 (W. D. Pa. 1968), aff’d per curiam, 411 F. 2d

1015 (3d Cir. 1969). Expert opinion may be modified with

the qualifications placed thereon by another expert. Slater

v. Erie Lackawanna Ry., supra, 300 F. Supp. at 3. There

was a wide range of contradictory opinions expressed by

the expert witnesses in this case on the issue of what, if

any, diagnostic tests should have been performed by de-

fendant. We find recognition of this fact in plaintiffs’

statement that ‘‘almost all of the experts called on behalf

of Dr. Spencer agreed that neurological testing was called

for considering the symptoms being evidenced by Mr.

Ayoub.’’® The Court’s instruction was intended to and,

we believe, did make clear to the jury that, if it found the

expert testimony on diagnostic testing to be contradictory,

it was not bound to hold Dr. Spencer to a standard of con-

duct based on any particular witness’ testimony. Rather,

it was left to the jury to decide whether defendant’s con-

duct conformed to that standard which the jury found,

based on all the evidence, was the proper one for an ortho-

pedie specialist in defendant's position. We find no preju-

dicial error in this instruction.

The Court has considered all of the grounds alleged

by plaintiffs and has determined that there is no basis for

awarding a new trial.

An appropriate Order will be entered.

5. Brief in Support of Motion for New Trial, at 12 (emphasis

added).

A24 District Court Order

IN THE

UNITED STATES DISTRICT COURT

For THE

Eastern District or PENNSYLVANIA

Civil Action No. 73-2833

HANNA M. AYOUB and MARGARET AYOUB, his wife

v.

DR. H. N. SPENCER, M.D.

ORDER.

Anp Now, to Wirt, this 27th day of January, 1976, Ir

Is Orverep that plaintiffs’ motion for a new trial is denied.

/s/ Louis C. Becutte, J.

FRCP, Rule 51 A25

FEDERAL RULES OF CIVIL PROCEDURE.

Rule 51.

Instructions to Jury: Objection.

At the close of the evidence or at such earlier time

during the trial as the court reasonably directs, any party

may file written requests that the court instruct the jury

on the law as set forth in the requests. The court shall

inform counsel of its proposed action upon the requests

prior to their arguments to the jury, but the court shall

instruct the jury after the arguments are completed. No

party may assign as error the giving or the failure to give

an instruction unless he objects thereto before the jury

retires to consider its verdict, stating distinctly the matter

to which he objects and the grounds of his objection. Op-

portunity shall be given to make the objection out of the

bearing of the jury.